Sensitivity to fragrance can result in reactions that range from sneezing or a skin rash to a full-blown asthma attack. Depending on the severity of the reaction, an employee’s fragrance sensitivity may constitute a disability under the Americans with Disabilities Act (ADA) which defines a disability as any physical or mental impairment that substantially limits a major life activity.
And if an employee has an ADA disability, an employer must provide a reasonable accommodation that will allow the employee to perform essential job functions. But what’s reasonable when it comes to an accommodation for fragrance sensitivity?
Employee’s Fragrance Sensitivity Brings Lawsuit
A recent ruling by a federal district court demonstrates that many variables can come into play when evaluating the reasonableness of an accommodation request. The case involved an employee with asthma and a severe chemical sensitivity to certain perfumes and scented products. She had difficulty breathing when her co-workers wore a certain perfume.
Despite her request, her employer didn’t ask the employees to stop wearing the perfume and the continued exposure triggered more severe reactions until the employee required emergency medical treatment. Her co-workers responded by mocking her reaction in Facebook posts and continuing to wear the perfume. The employee went on leave and asked to work from home or to have the employer implement a fragrance-free workplace policy. Both requests were denied.
The employee sued and the employer argued that the case should be dismissed because the employee’s requests for accommodation were unreasonable. But the court denied the employer’s motion to dismiss the case and ruled that telecommuting can be a reasonable accommodation and that the policy might be considered reasonable in light of the co-workers’ behavior and the employer’s failure to reprimand them. The case can now proceed to a jury trial.
Possible Accommodations for Fragrance Sensitivity
One lesson from this case is that handling a request for accommodation should include an evaluation of the particular facts and circumstances of the situation. Typically, employers simply ask employees to refrain from wearing excessive amounts (or any) fragrance, explaining that it is a courtesy to employees who have fragrance sensitivities (note: employers making such requests shouldn’t identify the employee who needs the accommodation). This type of request is usually effective in resolving the problem.
Although employees who love their perfumes and colognes might resist or be offended, generally co-workers will cooperate once they know someone’s health is being affected. But if they don’t, employers should take steps to ensure compliance.
An alternative accommodation that may be worth exploring is whether moving the work station of one employee or the other would help relieve the problem. Employers should be cautious when deciding to move the employee with a disability to avoid claims that the move is retaliatory.
As the court noted in the case above, telecommuting is another option. Some employees have such severe reactions to fragrance that it is very difficult to eliminate all triggers from the workplace. If this is the case, employers should consider whether the employee can work from home effectively. The court pointed out that advances in communications technology makes it less burdensome for employers to allow employees to work from home as a reasonable accommodation.
According to the Job Accommodation Network (JAN), there are several possible accommodations for employers to consider:
- Maintain good indoor air quality
- Discontinue the use of fragranced products
- Use only unscented cleaning products
- Provide scent-free meeting rooms and restrooms
- Modify workstation location
- Modify the work schedule
- Allow for fresh air breaks
- Provide an air purification system
- Modify communication methods
- Modify or create a fragrance-free workplace policy
Joan S. Farrell, J.D., is a Legal Editor for BLR’s human resources and employment law publications. Ms. Farrell has over 10 years’ combined experience in employment law and human resources management. As an in-house attorney for Citizens Communications Company, Ms. Farrell provided counseling on employment practices and represented the company in labor and employment matters. She later worked as a manager of Citizens’ Human Resources and Employment Law group. Ms. Farrell also represented management in employment law matters as an attorney with the national law firm of Brown Raysman Millstein Felder & Steiner LLP. Her experience includes representing management in administrative matters, discrimination and wrongful termination claims, as well as wage and hour disputes. Ms. Farrell received her law degree from Pace University School of Law.
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